dissenting.
I would affirm the judgment allowing attorney’s fees. The ruling of Judge Smith, a ruling which was long overdue in this area of the law, is highly commendable. Touching lightly upon the views of Justice Bakes, who would affirm on the technicality that the case was filed before March 1, 1979,1 I disagree with his view that I.C. § 12-121 is here applicable. Our opinion in Rueth v. State, 100 Idaho 203, 596 P.2d 75 (1979), made it clear that, in reaffirming Flandro v. Seddon, 94 Idaho 940, 500 P.2d 841 (1972), a condemnation proceeding is an action provided for by the Idaho Constitution, and not the legislature. 100 Idaho at 222, 596 P.2d 75. Although the legislature was authorized to and has provided the procedural guidelines, it is only the Court which will interpret the meaning of just compensation as required by Art. 1, § 14.
“Just compensation” means the full monetary equivalent of the property taken. United States v. Reynolds, 397 U.S. 14, 90 S.Ct. 803, 25 L.Ed.2d 12 (1970). That definition needs no further discussion. Under the Idaho constitutional provision, the condemnor is obliged to pay the landowner the full fair market value of the property as a prerequisite to gaining title. Nothing less will suffice. Initially it should be up to the condemnor to ascertain that fair market value, and thereupon forthwithly and forthrightly offer that ascertained value to the landowner.2 It is not a market overt situation. Unlike an ordinary real estate transaction, there is no room for the condemnor to offer less than the ascertained value, and thereafter bargain and haggle. The condemnor, constitutionally vested with this awesome power to acquire property which is not for sale, must fairly and openly deal with the landowner. In that manner most condemnation actions should not be thrown into litigation. For the condemnor, the cost of appraising the property is thus an ordinary administrative cost of the desired acquisition. The landowner who is not satisfied with the offer may, in turn, seek out, at his own expense, legal and appraisal advice upon which he will rely in attempting to negotiate a settlement.
Where litigation ensues, and the landowner prevails and obtains more than was offered, prima facie the offer was too low and was not an offer of just compensation. In that event the landowner will retain that which the jury (or court in a non-jury case) has found to be just compensation, and, in order that it be the full monetary equivalent of the property taken, the landowner must not be penalized by having to pay out of his recovery the expenses, including attorney’s fees and expert witnesses, to which he has been put. That is fulfillment of the constitutional provision, and that should be our holding today. By so holding, this Court would properly fill a gap which has been long vacant, too long. Perhaps, had the legislature taken some action, the constitutional validity of its thus defining and assuring just compensation would have gone unchallenged. But it did not. The Oregon legislature has done so. There the *880landowner will be awarded attorney’s fees and other expenses if the jury assessed just compensation in an amount which “exceeds the highest written offer in settlement submitted by condemnor ... at least 30 days prior to commencement of said trial; .... ” O.R.S. 35.346(a). Moreover, even if the landowner does not obtain a verdict exceeding the condemnor’s highest offer, he may still recover his attorney’s fees and expenses.
“(b) If the court finds that the first written offer made by condemner to defendant in settlement prior to filing of the action did not constitute a good faith offer of an amount reasonably believed by condemner to be just compensation.” O.R.S. 35.346(b)
Thus, it is seen that the Oregon legislature has statutorily required fair dealing and provided for attorney’s fees as did Judge Smith in the first instance, and as I now declare well in order.
The Montana legislature has addressed the proposition:
“In the event of litigation and when the private property owner prevails by receiving an award in excess of the final offer of the condemnor, the court shall award necessary expenses of litigation to the condemnee.”
R.C.M. 70-30-305(2)
“(1) Necessary expenses of litigation as authorized by 70-30-305 mean reasonable and necessary attorney fees, expert witness fees, exhibit costs, and court costs.”
R.C.M. 70-30-306(1) (emphasis added).
Whatever may be the authority of the Oregon and Montana legislatures to so provide is not necessary of further inquiry, not where it is well established in Idaho that our condemnation proceedings are not creatures of legislative creation, but rather constitutional, absolutely sui generis. We merely look to Oregon and Montana to ascertain what the people of those states believe to be fair. Our legislature without doubt recognizes that it is this Court which ultimately will pass upon the meaning of constitutional just compensation, and the legislature has maintained a hands-off approach.
The opinion authored by Justice Shepard offends notions of fair play in reversing “the trial court’s award of attorneys’ fees as not in compliance with the proper standard (not known until today) and remand for the sole purpose of determination of attorneys’ fees in accordance with the standard set forth infra.” It might be an appropriate ruling if it were somehow demonstrated how a district judge could err in failing to apply a standard which had not yet been divined. And it would be an appropriate ruling if the district judge had denied attorney’s fees, and the landowner on an appeal taken by him was responsible for the creation of new standards. Such a landowner would only be getting the benefit of his own product. But that is not this case. The Court today creates a new standard, and then, in violation of all known principles of retroactivity, applies it to a ruling made almost three years ago!!
. Except for the technicality, prior cases on the subject suggest that Justice Bakes would not allow a landowner any attorney fees whatever unless it could be established that the condemnor was guilty of frivolously condemning. I agree heartily with Justice Shepard’s discussion of that issue. I also again point out that Justice Bakes has continued to be of the view that attorney’s fees may be awarded under the guise of punitive damages — which was, until Cheney v. Palos Verdes, 104 Idaho 897, 665 P.2d 661 (1983), certainly “in the absence of statute authorizing them.”
. The Reply Brief of the Highway District candidly recognizes this precept:
“However, an eminent domain action is somewhat different from the ordinary civil litigation in this respect, since there is a statutory obligation on the part of the condemning authority to bargain in good faith." Appellant’s Reply Brief, p. 10.